In what should be a wake-up call, in its recent ‘Regulatory Decision-making Annual Report 2020/21’, the Bar Standards Board (BSB) highlighted a considerable rise in the number of complaints being received regarding Barristers. This includes a near doubling of the number of investigations into the inappropriate use of social media. Here we will take a look at what the BSB had to say about complaints regarding Barristers, and in particular, the concern over the misuse of social media.
What do the 2020/21 BSB’s figures on Barrister conduct show?
In the year between April 2020 to March 2021, the BSB received 1,887 complaints, a rise of nearly one third from 1,460 in the previous reporting year. Their figures show:
- The number of complaints relating to inappropriate use of social media has risen substantially in recent years from just two in 2016/17 to 49 in 2020/21.
- 11 formal investigations were carried out in relation to the use of social media in 2020/21 compared with six in 2019/20.
- The most work-related complaints were in the area of family law and crime.
- More than a third of reports that led to investigations came from barristers, usually about other counsel, but self-reporting doubled too.
- The majority of administrative sanctions issued by the BSB relate to where barristers had practised without a practising certificate or ‘held out’ as a barrister.
- Four barristers were disbarred, three of which arose from a previous finding of professional misconduct by the Solicitors’ Disciplinary Tribunal.
- Complaints received about Barristers out of work conduct was also high in 2021; “We continue to see a high volume of reports about barrister’s conduct outside their professional life with 16.9% of cases assessed this year falling into that category. This is up from 7.9% in the previous year”.
What did the BSB have to say about the use of social media by Barristers?
The BSB’s report highlighted a considerable increase in complaints regarding inappropriate content placed on social media platforms by Barristers in 2020/21. The report states, “Social media is more widely used by barristers, and this has led to an increase in reports about barristers’ conduct on these platforms”. They also highlight that this inappropriate content is often published outside of professional life; “One facet of this relates to inappropriate content on social media. In this area, we have seen dramatic increases in reports received. Over the past 5 years, there has been an increase from two distinct cases in 2016/17, to 49 in 2020/21”.
In terms of the specific nature and tone of the types of social media posts that have given rise to complaints, the BSB state that some have been “discriminatory”, and there are examples of where Twitter have been used by Barristers to “gratuitously insult others”.
What does the BSB’s guidance on social media recommend?
The BSB publishes its own social media guidance to help Barristers understand their duties, whether using social media within work or outside. The guidance reminds Barristers:
- They are bound by Core Duty 5 not to behave in a way that is likely to diminish the trust and confidence which the public places in them or the profession at all times. This includes when putting posts onto any social media platform.
- Heated debates, arguments, and demeaning or insulting comments may diminish public trust and confidence in the profession in breach of Core Duty 5.
- Inappropriate posts or comments may also lead to a breach of Core Duty 3 (to act with honesty and integrity) and Core Duty 8 (not to unlawfully discriminate against any person).
- Any posts on social media should also ensure the client’s matters are always kept confidential in accordance with Core Duty 6. As such, confidential communications to clients should not be placed on social media or details disclosed on public platforms.
How seriously does BSB take complaints of Barrister misconduct in relation to social media?
There is no doubt that BSB are prepared to see Barristers face serious penalties, including suspension if they are found in breach of their core duties when posting on social media. In 2019 Barrister Barbara Hewson was suspended from practice for two years after posting a series of tweets between 2017 and 2019 and after publishing a blog in 2019. These tweets were judged to be:
- “seriously offensive, abusive and publicly disparaging towards another barrister, including some which were directed at that barrister’s competence and reputation;
- obscene or seriously offensive in terms of the language used; and
- disparaging of the BSB’s regulatory process thereby undermining public trust and confidence in that process and thus in the profession”.
The prevalence and pervasiveness of social media means that it is easier than ever to inadvertently place careers at risk by making an ill-judged comment on Facebook or Twitter. Unfortunately, once such a post is made, the damage may then be irreversible, such is the public nature of this content. While platforms such as Twitter and Linkedin may allow Barristers and other legal professions to constructively debate and highlight legal matters, this needs to be kept entirely appropriate and professional at all times.
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